Citation Nr: 0900808
Decision Date: 01/08/09 Archive Date: 01/14/09
DOCKET NO. 07-25 511 ) DATE
)
)
On appeal from the
Department of Veterans Affairs Regional Office in Detroit,
Michigan
THE ISSUE
Entitlement to service connection for tinnitus.
REPRESENTATION
Appellant represented by: Military Order of the Purple
Heart of the U.S.A.
ATTORNEY FOR THE BOARD
Theresa M. Catino, Counsel
INTRODUCTION
The veteran served on active military duty from March 1964 to
December 1969 and from January 1970 to June 1984.
This matter comes before the Board of Veterans' Appeals
(Board) on appeal from a February 2006 rating action of the
Department of Veterans Affairs Regional Office (RO) in
Detroit, Michigan.
This appeal is being REMANDED to the RO via the Appeals
Management Center (AMC), in Washington, DC. VA will notify
the veteran if further action is required.
REMAND
Unfortunately, a remand of the veteran's tinnitus claim is
necessary. The Board regrets the delay caused by this
remand. After a thorough review of the claims folder,
however, the Board finds that further evidentiary development
of this issue is necessary prior to a final adjudication of
the claim.
Initially, the Board acknowledges that service treatment
records do not reflect any complaints or treatment referable
to tinnitus. These reports do indicate, however, that the
veteran received medical care for a left ear infection in
June 1970 as well as bilateral ear blockage on multiple
occasions (including in July and August 1970, August 1971,
October 1979, and September 1982).
The first complaint of tinnitus appears to have occurred at a
VA audiological examination conducted in January 2006, when
the veteran described recurrent bilateral tinnitus. The
examining VA audiologist was unable to determine the etiology
of this disorder.
In this regard, the Board notes that, according to the
examination report, the veteran purportedly stated that his
tinnitus had begun just 3 to 4 years prior to the evaluation.
In the subsequent November 2006 notice of disagreement and
August 2007 substantive appeal, however, he denied having
made that statement. Rather, he explained that he had
actually informed the examiner that his tinnitus had worsened
in the past several years. Indeed, he maintains that, as a
result significant in-service noise exposure from jet
engines, he has experienced ringing in his ears "since early
in . . . [his] Navy career."
The Board has considered these contentions. Further, service
personnel records reflect that the veteran's primary military
occupational specialty was that of a flight attendant and
that he received training in joint aviation supply and
maintenance material management. In addition, service
connection has been granted for bilateral hearing loss
(noncompensable from September 2005).
In light of these facts, the Board finds that a remand of the
veteran's tinnitus claim is necessary. On remand, he should
be accorded a current audiological examination to determine
the etiology of his tinnitus.
On the examination conducted pursuant to this remand, the
examiner should have access to, and an opportunity to review,
the claims folder in conjunction with the evaluation. See
38 U.S.C.A. § 5103A(d) (West 2002); 38 C.F.R. § 3.159(c)(4)
(2008); McLendon v. Nicholson, 20 Vet. App. 79 (2006)
(stipulating that VA's duty to assist veterans, pursuant to
the VCAA, includes the duty to obtain a medical examination
and/or opinion when necessary to make a decision on a claim).
Moreover, as provided for by the Veterans Claims Assistance
Act of 2000 (VCAA), VA has a duty to notify and assist
claimants in substantiating a claim for VA benefits.
38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5107, 5126 (West 2002
& Supp. 2007); 38 C.F.R. §§ 3.102, 3.156(a), 3.159 (as
amended), 3.326(a) (2008). A complete and thorough review of
the claims folder indicates that the veteran has not received
a VCAA-notice-complying letter pertaining to his tinnitus
claim.
Accordingly, further appellate consideration will be deferred
and this case is REMANDED for the following actions:
1. A VCAA letter pertaining to the
claim for service connection for
tinnitus, on a direct basis and as
secondary to the service-connected
bilateral hearing loss, should be
furnished to the veteran.
2. The veteran should be scheduled for
an examination to determine the nature,
extent, and etiology of his tinnitus
symptomatology. The claims folder must
be made available to the examiner in
conjunction with the examination. All
indicated studies should be conducted.
All pertinent tinnitus pathology should
be noted in the examination report.
For any tinnitus diagnosed on
examination, the examiner should
express an opinion as to whether it is
at least as likely as not, i.e., a
50 percent probability or greater, that
such disorder had its clinical onset in
service, is otherwise related to active
service, or is related to, or
aggravated by, the service-connected
bilateral hearing loss. Complete
rationale should be given for all
opinions reached.
3. Thereafter, the issue of
entitlement to service connection for
tinnitus, on a direct basis and as
secondary to the service-connected
bilateral hearing loss, should be
re-adjudicated. If the decision
remains adverse, the veteran and his
representative should be provided with
a supplemental statement of the case
(SSOC). The SSOC must contain notice
of all relevant actions taken on the
claim for benefits, to include the
applicable law and regulations
considered pertinent to the issue on
appeal as well as a summary of the
evidence of record. An appropriate
period of time should be allowed for
response.
No action is required of the veteran until he is notified by
the RO; however, the veteran is advised that failure to
report for any scheduled examination may result in the denial
of his claims. 38 C.F.R. § 3.655 (2008). The veteran has
the right to submit additional evidence and argument on the
matter that the Board has remanded. Kutscherousky v. West,
12 Vet. App. 369 (1999).
This claim must be afforded expeditious treatment. The law
requires that all claims that are remanded by the Board or by
the United States Court of Appeals for Veterans Claims
(Court) for additional development or other appropriate
action must be handled in an expeditious manner. See 38
U.S.C.A. §§ 5109B, 7112 (West Supp. 2007).
_________________________________________________
L. HOWELL
Veterans Law Judge, Board of Veterans' Appeals
Under 38 U.S.C.A. § 7252 (West 2002), only a decision of the
Board is appealable to the Court. This remand is in the
nature of a preliminary order and does not constitute a
decision of the Board on the merits of your appeal.
38 C.F.R. § 20.1100(b) (2008).